I’m thrilled to report that we’ve just struck down a second state parenting ban. Just six months after we got rid of Florida’s 33-year-old ban on adoption by gay people, yesterday the Arkansas Supreme Court struck down that state’s related parenting ban as unconstitutional. This removes a barrier that harmed kids and families all across the state, and shows once again that the ideas driving laws like this — that gay people are bad for kids — are simply unfounded.
The Arkansas law struck down yesterday was Act 1, which banned any unmarried couple, straight or gay, from serving as adoptive or foster parents in Arkansas. Yesterday's decision was the culmination of 2 1/2 years of hard-fought litigation against Arkansas Attorney General Dustin McDaniel and the Family Council Action Committee, who were the proponents of the initiative. It was also the culmination of a much longer battle against the efforts of anti-gay activists in that state to ban gay people from adopting.
Back in 2006, after a seven-year lawsuit, we got this same court to strike down an earlier ban on foster parenting by gay people . Then we prevented anti-gay activists from passing a new gay parenting ban through the legislature, so they put Act 1 before the voters in 2008, and it passed with 57 percent of the vote. While Act 1 doesn’t focus solely on gay couples, the measure’s proponents made clear during the election that it was designed to “blunt the gay agenda.”
Act 1 had devastating effects on kids and families in Arkansas. Take plaintiff W.H., a little girl who was taken into state custody at two months old after suffering serious physical abuse. Her grandmother, lead plaintiff Sheila Cole, is a registered nurse and wanted to adopt W.H. But since Sheila lives with her female partner of many years, Act 1 disqualified her, despite the fact that it’s a given among child welfare professionals that kinship placements like this one are preferred. So rather than going to live with her grandmother the nurse, W.H. stayed in foster care with strangers. Act 1 also barred Stephanie Huffman and Wendy Rickman, who have been together for over a decade (check out this great video of them), from adopting a child in need in Arkansas, even though they had previously been approved to adopt a special needs child from the state’s foster care system before the ban was enacted.
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The plaintiffs also included three teenagers living in a state-run group home for children waiting for a family to adopt them. These kids joined the lawsuit because they don’t care whether their new family includes gay people, they’re just looking for a “forever home.”
In yesterday’s decision, the court held that Act 1 violates the Arkansas constitution’s right to privacy because it punishes unmarried couples for having intimate relationships in their homes. The court explained that Act 1 “presents a pernicious choice for [plaintiff Sheila] Cole. She can either give up her fundamental right to sexual intimacy in her home free from investigation by the State,” and thereby be able to adopt or foster her granddaughter, or she can keep her longstanding relationship with her partner but “forego the privilege of having children by adopting or fostering. We hold that the burden inflicted on her is direct and substantial.”
The only way Act 1 could both impose this burden on privacy rights and still be constitutional is if the Act were the “least restrictive method available” to the state to protect child welfare. But the court held that Act 1 failed that requirement on two grounds. First, Arkansas’s own senior child welfare officials testified that Act 1 didn’t promote child welfare at all. And second, Arkansas already puts applicants for foster or adoptive parenthood through an exhaustive individualized screening process, checking for everything from criminal records to child abuse history to substance abuse to medical history. That screening process by itself shows that Act 1’s categorical ban is both overkill and unconstitutional.
The fact that the supreme court of a conservative state struck down Act 1 after an exacting constitutional review should help us convince legislatures in other states not to pass similar restrictions on parenting by LGBT people. And if the laws do get on the books, it will help us get those laws struck down too.
But our real goal is to get to the point where laws like Act 1 don’t get passed in the first place. To do that, we have to convince people that the stereotypes that lie behind laws like Act 1 are false. The core idea we’re up against is that gay people are bad for kids. Some voters and legislators worry that we will molest kids, that we’ll make them gay, that we’ll make them gender nonconforming, or just that our kids won’t grow up to be as happy and healthy as they ostensibly would with married straight parents.
Cases like Cole and our successful challenge to Florida’s adoption ban help debunk those stereotypes. With great plaintiffs, expert testimony, and strategic lawyering, they show America that there are many kids being successfully raised by lesbians and gay men. They show that lots of other kids are hurt when they’re stuck in group homes because the pool of possible adoptive homes is unjustifiably narrowed by restrictions like Act 1. They also help show that the stereotypes about how gay people are bad for kids are just wrong — they’re based on fear rather than science. For instance, as I mentioned above, the court in Cole noted the testimony of high-level child welfare officials within Arkansas’s Department of Human Services that there was no child welfare basis for Act 1 in the first place. In other words, the folks in Arkansas who best understand what kids need say gay people aren’t bad for kids. That’s a powerful message from powerful messengers, with a stamp of approval from the state supreme court.
So the ACLU has now gotten rid of the two most prominent anti-gay parenting restrictions, and we wait to see whether similar restrictions will appear again in either state — whether in the statehouse or at the ballot — or whether the people of Arkansas and Florida are finally ready to move on. We’ll be there if our opponents try to pick up the fight once more, but for the moment, we’re savoring a hard-earned victory for kids all across the state.
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.